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Bank of New York For the Benefit of the Asset Backed Certificates v. Verta Tross


April 28, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-31902-07.

Per curiam.


Submitted March 21, 2011

Before Judges Sabatino and Ostrer.

The trial court denied defendant's motion to vacate a default judgment of foreclosure. On appeal, defendant argues that (1) the judgment is void because there was inadequate service of process; and (2) default judgment should have been vacated under Rule 4:50-1(a) ("excusable neglect") and Rule 4:50-1(f) ("any other reason justifying relief").

We are unpersuaded and affirm.


According to the mortgage note and other record evidence, defendant Verta Tross borrowed $436,000, secured by a mortgage from America's Wholesale Lender with an 8.9 percent rate, to buy a house in Englewood in January 2007. The monthly payment was $3,476.83. She certified that she was laid off and collecting unemployment compensation at the time, but, apparently, she previously had been earning $54,000 a year. Defense counsel represented to the trial court that defendant put no equity into the home. According to the loan documents, she represented that the property would be her principal residence. Along with the $436,000 mortgage, she allegedly executed a second mortgage for $109,000. In argument before the trial court, defense counsel represented, over plaintiff's objection, that the $109,000 was withheld as closing costs. However, the record before us does not include the settlement statement. The second mortgagee was named as a co-defendant in the foreclosure suit.

Defendant defaulted in July 2007. She claimed that she was attempting to reach a work-out with the first mortgagee,*fn1 but there is no documentary proof of that in the record. Bank of New York (BNY) brought a foreclosure action in December 2007. BNY had been assigned the note and mortgage in November 2007, according to the complaint. As we discuss at greater length below, the trial court found that personal service was made at the Englewood residence on defendant's brother, Spencer Tross, on December 8, 2007.

No answer was filed, and default was entered January 17, 2008. Notice of the entry of default was mailed to the residence on January 29, 2008. There was no evidence of its return as undelivered.

A notice to cure was sent certified, return receipt requested, to the Englewood residence in January 2008. Defendant herself signed for it on February 13, 2008. The notice referred to the pending foreclosure suit and warned defendant that plaintiff would seek entry of final judgment if she did not cure. Defendant did not respond.

Plaintiff obtained a default judgment on May 21, 2008 in the amount of $466,414.70, plus interest and fees. The judgment was mailed to defendant at the Englewood residence on June 27, 2008. On September 23, 2008, plaintiff sent defendant, again to the same Englewood address, notice of a Sheriff's sale scheduled for October 10, 2008. It was sent by regular mail, and by certified mail, which was unclaimed. The sale proceeded.

On March 11, 2009, defendant admittedly received notice of eviction, which was scheduled to occur on April 28, 2009. On April 26, 2009, she retained counsel. On April 27, 2009, one day before execution of the writ of eviction, and almost a year-and-a-half after service of the summons and complaint, defendant sought a stay. Judge Koblitz granted the application the same day, staying execution of the writ until May 26, 2009.

On or about May 8, 2009, defendant moved for relief from the default judgment. In support of her motion, she certified to the following facts: she "never received notification of this action" until served on March 11, 2009 with notice of eviction; she did not reside "full-time" at the property because she was staying with her ailing mother; her brother, who "did visit [the mortgaged premises] from time to time," never told her that he received service of the summons and complaint and never showed those documents to her; and her brother "never set up permanent residence" at the home.

Spencer Tross stated in an affidavit dated May 8, 2009 that: he was never personally served with "legal papers"; he never gave the papers to his sister; and he recalled throwing away papers that were tacked to the front door "during the middle part of 2007." Although he did "go by the house . . . from time to time" in mid- and late-2007, and "did visit the property on occasion," he "did not reside at the property full or part-time." As of the date of the affidavit, he claimed to reside at another address in Englewood with his ailing mother.

On May 26, 2009, Judge Koblitz entered an order to show cause presented by defendant with a return date of June 26, 2009. The order compelled BNY to show cause why the court should not vacate the default judgment and cancel the sheriff's sale. Defendant apparently also sought to stay the eviction, but it proceeded nonetheless.

On June 8, 2009, the court heard defendant's emergent request to undo the eviction. Defense counsel represented that Spencer Tross "was now living in the property" and indicated that both he and his sister had belongings and a dog at the property, which were removed during eviction. The court denied plaintiff's motion for emergent relief, which consisted of releasing defendant's property and allowing her to return to the home. Rather, Judge Koblitz compelled BNY to show cause on June 26, 2009 why defendant should not be allowed to return to the home, retrieve belongings, and be granted other relief.

At the ensuing non-testimonial hearing on June 26, 2009, the court confronted defense counsel with the affidavit of service that plaintiff had presented in response to defendant's application. The affidavit stated that service was accomplished at 6:00 p.m. on December 8, 2007 on Spencer Tross, who the affiant stated was a competent member of the household residing there. The affidavit described Mr. Tross as a thirty-year-old black man with black hair, six-foot-two-inches tall, and weighing 170 pounds. The court reasoned that the process server likely obtained that personal information in the course of effectuating service, belying Mr. Tross's denial of service.

[DEFENSE COUNSEL]: He never informed Miss Tross of the matter. He - first of all, Miss Tross was ill at the time, she was diagnosed with a brain tumor. Either he didn't want to disturb her, and also he just thought it was for him, because if he received papers, if he saw something, he just thought it had to do with him, nothing to do with her.

THE COURT: So now he admits that he received it?

[DEFENSE COUNSEL]: He doesn't recall either way, but he definitely did not say anything to his sister, because he knew he would remember if he did that, your Honor.

THE COURT: Well, originally his position was he didn't receive it, and then when it became clear that the process server knew his approximate height, weight and name, it appears that he changed his version to he didn't receive from - he didn't receive it to he didn't tell his sister about it.

[DEFENSE COUNSEL]: Your Honor, that was eighteen months ago, and there is a very big difference when knowing when a person is going here or there, when eventually he received something that he thought was served in the process and whether he acknowledged that there was a complaint and he informed his sister by the way, the house is in trouble.

THE COURT: He signed a certification saying he did not receive it.

[DEFENSE COUNSEL]: To the best of his knowledge, your Honor.*fn2

The court also reminded defense counsel that he had represented that Mr. Tross resided at the house when he sought to reverse the eviction (although that occurred over a year after service of the complaint). Defense counsel conceded that Mr. Tross "did have some belongings" at the house at the time of service. Counsel claimed, without evidential support, see Rule 1:6-6, that at the time of alleged service, Mr. Tross "had another residence, he was actually living with a girlfriend at the time as well, and sometimes he actually stayed by his mother's."

Judge Koblitz denied defendant relief from the judgment. The court relied on the affidavit of service and rejected Mr. Tross's denial of service. The court also relied on defendant's personal receipt of the notice to cure, which informed her that a foreclosure suit was pending and that a default judgment could be entered if she did not respond. The court rejected defendant's claim that her failure to answer the complaint resulted from excusable neglect. The court did not expressly address whether defendant had a meritorious defense to the suit.


We will first address whether service was proper. We will then turn to whether default judgment should have been vacated based on "excusable neglect" under Rule 4:50-1(a), or exceptional circumstances under the "catch-all" subsection, Rule 4:50-1(f).


A motion to vacate a default judgment for lack of service is governed by Rule 4:50-1(d), which authorizes a court to relieve a party from a final judgment if "the judgment or order is void." "A default judgment will be considered void when a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice." Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004). Even if there is actual notice of the suit comporting with due process, the default judgment must be set aside if there is a substantial deviation from rules. Sobel v. Long Island Entm't Prods., Inc., 329 N.J. Super. 285, 292-94 (App. Div. 2000). "If defective service renders the judgment void, a meritorious defense is not required to vacate the judgment under R. 4:50-1(d)." Jameson v. Great Atl. & Pac. Tea Co., supra, 363 N.J. Super. at 425. A motion under Rule 4:50-1(d) must be made within a "reasonable time," but is not subject to the absolute one-year time bar. Rule 4:50-2.

The trial court correctly determined that service was accomplished. Substituted service on Spencer Tross was made pursuant to Rule 4:4-4(a)(1), which authorizes service by personally delivering the summons and complaint to a competent individual, at least fourteen years old, who is a "member of the household . . . then residing" at the defendant's "dwelling place or usual place of abode."

A "dwelling place or usual place of abode" includes a person's permanent home, even if he or she is temporarily staying elsewhere. See Missell v. Hayes, 84 N.J.L. 196, 196-97 (Sup. Ct. 1913), aff'd, 86 N.J.L. 348 (E. & A. 1914) (finding "usual place of abode" includes family home where residential college student returned on vacation); Vredenburgh v. Weidmann, 14 N.J. Misc. 285, 286-87 (Sup. Ct. 1936) (New Jersey family home to which defendant, a Yale Law student, returned on vacation, was "usual place of abode"). By contrast, "usual place of abode" excludes a house from which defendant is absent for an extended and continuous period of time. See Fid. & Deposit Co. of Md. v. Abagnale, 97 N.J. Super. 132, 146 (Law Div. 1967) ("dwelling place or usual place of abode" did not include house of wife of defendant who was incarcerated); Warfield v. Fischer, 94 N.J. Super. 142, 146-47 (Law Div. 1967) (defendant who was studying in Germany and did not return regularly to parental home in New Jersey did not maintain "usual place of abode" there).

As for the recipient of substituted service, the rule requires that he or she be a "member of the household" who is "then residing" at the defendant's usual place of abode. The test for who qualifies as a household member is a flexible one, to accommodate non-conventional family arrangements. Resolution Trust Corp. v. Associated Gulf Contractors, Inc., 263 N.J. Super. 332, 343 (App. Div.), certif. denied, 134 N.J. 480 (1993). The member of "household" formulation was intended to be more expansive than the previous member of the "family" standard. Ibid.; see also Garley v. Waddington, 177 N.J. Super. 173, 180 n.1 (App. Div. 1981).

Moreover, the plain language "then residing" implies that the recipient of service need not be a permanent resident of the household; the recipient need only be residing in the household when service is made. The key is whether the person present in the household is sufficiently connected to the defendant, such that actual notice is reasonably assured. "The likelihood of prompt notice of the suit to defendant is the basis for permitting the substituted service." Warfield v. Fischer, supra, 94 N.J. Super. at 147. In other contexts, we have accepted the notion that a person can be a resident of more than one household, particularly in light of contemporary living patterns. See Sjoberg v. Rutgers Cas. Ins. Co., 260 N.J. Super. 159, 163 (App. Div. 1992) (construing concepts of residence and household in insurance law).

We find persuasive the following synthesis of the law on what constitutes "then residing":

"In deciding whether an individual is 'then residing therein' for purposes of service of process, there must be a nexus between the individual and the defendant that establishes some reasonable assurance that notice would reach the defendant." O'Sell v. Peterson, 595 N.W.2d 870, 872 (Minn. App. 1999). For example, a relationship of confidence, including, but not limited to, a familial relationship, might establish a nexus to support the conclusion that notice would reach the defendant. See, Nowell v. Nowell, 384 F.2d 951, 953 (5th Cir. 1967) (distinguishing nexus between tenant and landlord, from absence of nexus between tenants in same building); Plushner v. Mills, 429 A.2d 444, 446 (R.I. 1981) (concluding service on defendant's daughter was valid because she was a trusted member of household and had a substantial nexus with defendant).

In addition, the duration of an individual's presence, the frequency of the presence, or the intent to return may also establish a nexus between the individual, then residing in the defendant's residence, and that defendant. See, O'Sell v. Peterson, supra at 872, citing Sangmeister v. McElnea, 278 So.2d 675, 676-77 (Fla. Dist. App. 1973) (stating one who resides or visits home of relative for sufficient period of time may reside therein); Holtberg v. Bommersbach, 236 Minn. 335, 52 N.W.2d 766, 768 (Minn. 1952) (concluding intent to return may be of "extreme importance" in determining place of abode). [United States v. House, 100 F. Supp. 2d 967, 973-74 (D. Minn. 2000)].

Applying those factors, the court in House found that an adult woman who was a daily visitor and periodic overnight guest during the summer was "then residing." Id. at 975; see also Magazine v. Bedoya, 475 So.2d 1035, 1035-36 (Fla. Dist. Ct. 1985) (mother-in-law staying at defendant's home for six weeks while recuperating was "residing therein"); Drury v. Zingarelli, 180 A.2d 104, 106 (Pa. Super. Ct. 1962) (service proper on mother-in-law who was "in charge of the premises" although she did not live there permanently); Wichert v. Cardwell, 812 P.2d 858, 860 (Wash. 1991) (defendant's adult child staying overnight alone in defendant's usual abode was "then resident"). But see Salts v. Estes, 943 P.2d 275, 280 (Wash. 1997) (requiring that a person "then resident" actually live in the particular home).

We are also guided by the principle that the sheriff's return of service is presumed correct, and may be rebutted only by clear and convincing evidence. Jameson v. Great Atl. & Pac. Tea Co., supra, 363 N.J. Super. at 426; Resolution Trust Corp. v. Associated Gulf Contractors, Inc., supra, 263 N.J. Super. at 344; Goldfarb v. Roeger, 54 N.J. Super. 85, 90 (App. Div. 1959). "[U]ncorroborated testimony of the defendant alone is not sufficient to impeach the return." Goldfarb v. Roeger, supra, 54 N.J. Super. at 90. Thus, a defendant's bald assertion that the sheriff's return is false does not overcome the presumption. Resolution Trust Corp. v. Associated Gulf Contractors, Inc., supra, 263 N.J. Super. at 344. Rule 4:4-3 was amended in 2000 to permit service by private process servers who do not have an interest in the litigation. See Pressler, Current N.J. Court Rules, comment on R. 4:4-3 (2002). Consistent with the policy decision to entrust disinterested persons with the responsibility to serve process, we find that the presumption of correctness extends to their affidavits of service as well.

Applying these principles, the trial court correctly found that substituted service was accomplished. In this case, defendant did not deny that the mortgaged property was her "usual place of abode." She also had represented to the lender that she would use the house as her principal residence. Although she certified that she was not living there "full-time" because she was caring for her ailing mother, she did not deny that she lived there "part-time" or frequently returned there. Indeed, in the effort to reverse the eviction, counsel asserted that defendant's and her brother's belongings remained at the mortgaged premises, and defendant intended to live there.

The record also established that Spencer Tross was a member of the household then residing at defendant's usual abode. First, we rely on the presumption of correctness of the affidavit of service. The affidavit of service asserted that defendant's brother was a resident of the household, and he received the summons and complaint.

Second, Mr. Tross's denial of residence was essentially uncorroborated and entitled to no weight. Although Mr. Tross alleged that he did not reside at the Englewood residence "full or part-time," his denial was conclusory. He did specify how often he stayed at the Englewood residence around the date of service set forth in the affidavit of service. Had the brother exclusively resided elsewhere, defendant presumably could have marshaled proofs from him, in the form of rent or utility bill receipts, or the affidavits of co-tenants. She did not. There is no cognizable evidence of where Mr. Tross was living. Counsel's claim in argument that Mr. Tross was living at three other places - "another residence," his girlfriend's place, and his mother's home - was not competent evidence.

Nor did defendant specify how often her brother stayed at the residence in the relevant time period. Although she claimed that he did not establish "permanent residence," she did not exclude "temporary" or "part-time" residence.*fn3 She conceded that he visited there from "time to time." He had belongings there, indicating that he stayed there overnight.

There certainly was a nexus between defendant and her brother to establish "some reasonable assurance that notice would reach the defendant." United States v. House, supra, 100 F. Supp. 2d at 973. They were brother and sister. Moreover, when defendant was not sleeping at the mortgaged premises, she was nearby, at her mother's house in Englewood. That nexus, coupled with the apparent frequency of Mr. Tross's visits, support a finding that he was a member of the household "then residing" at the property.

Having determined that the mortgaged premises were defendant's "dwelling place or usual place of abode," and defendant's brother was "a member of the household . . . then residing" therein, the only remaining issue is whether the process server actually delivered the summons and complaint to Mr. Tross. As to that, we conclude that the process server's affidavit is persuasive and effectively unrebutted. The process server was able to report Mr. Tross's name, age, weight, and height because the process server personally delivered the papers to him.

Mr. Tross's denial of receipt was essentially uncorroborated and unpersuasive. The colloquy between Judge Koblitz and defense counsel, which we quoted above, was illuminating. Confronted with the affidavit of service, defense counsel retreated to the position that Mr. Tross denied receipt "to the best of his knowledge," and he "doesn't recall either way" whether he was served. In sum, substituted service was accomplished.


Turning to whether the default judgment should be vacated notwithstanding service, we concur with the trial court's decision that defendant has failed to establish "excusable neglect" or exceptional circumstances warranting relief under subsection (a) or (f) of Rule 4:50-1.

The decision whether to grant relief from a default judgment is "left to the sound discretion of the trial court, and will not be disturbed absent an abuse of discretion." Mancini v. EDS, 132 N.J. 330, 334 (1993). We find no mistaken exercise of discretion here. We recognize that requests for relief are viewed with liberality, to accomplish a just result. Ibid. Yet, balanced against that liberality is the court's and a plaintiff's interest in finality. Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 120 (1977).

In order to obtain relief under Rule 4:50-1(a), the movant must show both excusable neglect and a meritorious defense. Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964). Generally speaking, "[c]arelessness may be excusable when attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Mancini v. EDS, supra, 132 N.J. at 335. "'Obviously the greater the negligence involved, or the more willful the conduct, the less "excusable" it is . . . .'" Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n, supra, 74 N.J. at 125 n.5 (quoting 7 James W. Moore et al., Moore's Federal Practice, ¶ 60.27[2] (2d ed. 1975)).

Even if a request for relief is within the one year time bar under Rule 4:50-2, the length of the time between entry of judgment and the defendant's motion to vacate is a factor in deciding whether to grant relief. Reg'l Constr. Corp. v. Ray, 364 N.J. Super. 534, 541 (App. Div. 2003) (affirming finding of excusable neglect "when examined against the very short time period between the entry of default judgment and the motion to vacate"); Jameson v. Great Atl. & Pac. Tea Co., supra, 363 N.J. Super. at 428 (noting the "speed and diligence with which A & P moved to attempt to vacate the default judgment").

As for the showing of a meritorious defense, a bald denial of a plaintiff's complaint is usually insufficient to demonstrate that a meritorious defense exists. See 10 James W. Moore et al., Moore's Federal Practice - Civil ¶ 55.70[2] (3d ed. 2011). There is little point in setting aside a default judgment, sacrificing interests in repose and burdening plaintiff and the court with additional litigation, if the ultimate result will inevitably be the same. See Schulwitz v. Shuster, 27 N.J. Super. 554, 561 (App. Div. 1953) (requiring the showing of a meritorious defense so "[t]he time of the courts, counsel and litigants [is] not . . . taken up by . . . a futile proceeding").

In this case, the defendant's neglect to answer the complaint was not excusable. Defendant's brother accepted service. Even assuming for argument's sake that Mr. Tross never conveyed the papers to his sister or informed her that he had received them, she was actually notified of the suit when she signed for the notice to cure. She was warned of the risk of a default judgment. She did nothing.

In the meantime, the mortgagee continued to take the steps necessary to vindicate its rights under the mortgage. Notices were sent to the mortgaged premises. Regular mail was not returned as undelivered. Certified mail was unclaimed. Even after defendant received a notice of eviction, she waited six weeks to act. She hired a lawyer just two days before the scheduled eviction. In the meantime, the delinquency under the note increased. In sum, the record does not establish excusable neglect justifying relief under Rule 4:50-1(a).

Defendant also relies on Rule 4:50-1(f), which permits a court to vacate a default judgment for "any other reason justifying relief." A court should grant relief under Rule 4:50-1(f) only "when truly exceptional circumstances are present and only when the court is presented with a reason not included among any of the reasons subject to the one year limitation." Baumann v. Marinaro, 95 N.J. 380, 395 (1984). Relief under subsection (f) should be granted sparingly, only to avoid "a grave injustice." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 289 (1994).

We recognize, as did the trial court, the personal hardship associated with the loss of one's home in foreclosure. However, that alone does not warrant relief from the judgment. See Del Vecchio v. Hemberger, 388 N.J. Super. 179, 188 (App. Div. 2006) (noting that the defendant's tragic personal circumstances did not justify setting aside judgment of foreclosure). Doubts about service of process have led us to view a motion to vacate under Rule 4:50-1(f) with comparatively greater liberality. Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 100 (App. Div. 1998), certif. denied, 158 N.J. 686 (1999). However, Davis does not compel a different result here, since (1) we are not as uncertain as the court in Davis about the "actual receipt of the process," and (2) defendant here, unlike the defendant in Davis, did not promptly seek relief from the judgment.

Defendant suggests that the terms of the original loan in this case may raise questions about whether defendant was a victim of predatory lending practices, in view of the apparently unaffordable monthly payment, the high interest rate, and, the allegedly high closing costs. See Nowosleska v. Steele, 400 N.J. Super. 297, 304-05 (App. Div. 2008) (reversing default judgment of foreclosure under Rule 4:50-1(f) where defendants may have been victims of predatory lending practices). We have no record evidence about the circumstances of the original transaction, nor the representations made to defendant, nor her understanding of the agreements.

Yet, the equities in this case are unlike those in Nowosleska. Marjorie Steele, who was eighty-three years old, faced ejectment from the house where she had lived for forty-three years. Nowosleska, supra, 400 N.J. Super. at 300. Defendant here occupied the house for seven months before she defaulted on the note.

Ms. Steele, her daughter, and son-in-law owned a house worth over $400,000, but they had fallen on rough times and faced roughly $145,000 in mortgage debt, liens and judgments. Id. at 302. As a result of an apparently predatory transaction, they faced the prospect of losing the house and all of their more than $250,000 in equity.*fn4 Id. at 305. By contrast, defendant in the instant case put no money down and had no equity in the property. By the time her application to vacate default judgment was heard, defendant had possessed the house for two-and-a-half years, but had not made payments for roughly two years.

Lastly, the plaintiff in Nowosleska was a transferee of the deed who allegedly was connected to the principal of Equity Solutions. Id. at 302. By contrast, in the instant case, plaintiff is a financial institution that was apparently uninvolved in the original transaction.

In sum, despite the questionable nature of the original transaction, no "grave injustice" would apparently result if the default judgment of foreclosure were allowed to stand. The trial court appropriately exercised its discretion in denying relief under Rule 4:50-1(f).


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